In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 2 August 2016

High noon for Getty Images as a photographer bites back

Image by Carol M Highsmith

When LCS, a company acting for stock photographic image agency Alamy, sent photographer Carol M Highsmith a $120 settlement demand for using one of 'their' images without permission, things were about to get messy. The image in question was actually Highsmith's own work, displayed on her own website. Highsmith has now responded with a $1bn lawsuit against the massive Getty Images.Carol Highsmith is a 'richly published photographer best know for capturing 'Americana'. Highsmith’s images have been publicly available through the Library of Congress since 1992, and the only thing the artist asks is that people credit her when using them. But why is her claim for $1 billion dollars? Well after this ill fated episode was started by Alamy, Highsmith discovered that Alamy and Getty Images were apparently "representing" some 18,000 of her images.Seattle-based Getty Images is the world famous multi national agency that controls an enourmous archive of stock images - and it is known to be vigilant in protecting its rights and the rights of its clients. The company scans the web in search of instances where people have used its images without obtaining an appropriate license and pursues the alleged infringer for money. Alamy decribes otself as "the world’s largest stock photo collection". Only here Ms Highsmith wasnt actually a client - and Alamy didnt own or control the rights to the images - and nor did Getty.

One of Carol Highsmith's images

TorrentFreak said that what followed was "a typical copyright-troll operation. Those supposedly using content without permission receive a scary letter from Getty agents warning that all kinds of terrible things might happen if Getty decides to take the case to court. All this can be avoided, however, if the supposed image pirate pays a cash settlement."One such letter was received in December 2015 by the This is America! Foundation, a non-profit set up by Carol Highsmith, a long-established US-based photographer. Penned by a company calling itself License Compliance Services (LCS) on behalf of Alamy. The letter said:“We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s)” adding “Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.” The company demanded $120 to settle the dispute,Highsmith says she explained her position to LCS - primarily that she was the author and was the first legal owner of the copyright in the image. However, she also revealed that she had donated this and thousands of other images to the Library of Congress and makes them available to the public to reproduce and display for free. At the end of December 2015, Highsmith received confirmation from LCS that the case against her had been dropped. However, Getty and Alamy reportedly continued to make available more than 18,000 of Highsmith’s other photographs on their websites.Highsmith's lawsuit states: “Nowhere on its website does Getty identify Ms. Highsmith as the sole author of the Highsmith Photos. Likewise, nowhere on its website does Getty identify Ms. Highsmith as the copyright owner of the work” and “Instead, Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos” and “The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.”Highsmith says that Getty is liable for statutory damages of up to $468,875,000.Getty commented "We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously” adding “LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy.” http://www.loc.gov/pictures/collection/highsm/http://www.vocativ.com/345960/photographer-hits-getty-images-with-1-billion-copyright-lawsuit/https://torrentfreak.com/photographer-files-1bn-copyright-claim-against-getty-images-160728/

A second case agaunst Getty is highlighted here - but TechDirt are wary of going to far in applauding this one: https://www.techdirt.com/articles/20160804/11403535157/getty-sued-again-over-abusing-copyright-law-licensing-images-it-has-no-rights-to.shtml

BenCharging for a public domain image is no problem, that is not what the case is about.

The claim is that they provided false copyright information and distributed images with falsified copyright information. See http://www.copyright.gov/title17/92chap12.html#1202

Someone obtaining such an image may therefore be mistaken as to the authorship of the image, ability to identify the work, who is able to license rights to display, reproduce etc. the image and what the terms and conditions are.

If the defendants had merely sold copies of the images containing correct attribution and licensing terms there shouldn't have been any problem. Most likely it would have been OK even if the defendants had not paid the plaintiff a cent. Some customers may have paid them just for the ease of access, some customers may have obtained copies elsewhere.

However had the defendants correctly acknowledged ownership and authorship in the images that would not have worked with their scheme of claiming damages from people using images Getty etc. had no rights in. Because with no rights in the image, they have no say in how the image is used, they can not sue over copyright infringement etc.

The case may fail fully or partially due to the images being public domain (the work may still be entitled to proper attribution).I would not be surprised however if the defendants face numerous charges of fraud/extortion against them from other parties. It may be a bit difficult arguing that there is no copyright whatsoever in the images, and at the same time demanding money, threatening people with lawsuits over copyright infringement. A few thousand cases of whatever crime that may be could add up to significant prison time is my guess.Those charges may be coming regardless if they settle this case which is most likely the smart thing to do if they can.

If I was a customer of the defendants I would also start wondering to what extent their image attributions were correct (and if I wanted my name associated with them).

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